C. Elements Defined

LibraryElements of Civil Causes of Action (SCBar) (2021 Ed.)

C. Elements Defined

1. The Identity of the Thing Enjoyed

South Carolina courts have not discussed the first element. In North Carolina, one of the elements of a prescriptive easement is that it "involved a way that had substantial identity."18 The North Carolina Supreme Court has said that "[w]hile there may be slight deviations in the line of travel there must be a substantial identity of the thing enjoyed."19 Another North Carolina court said that because a prescriptive way is established by custom and usage, a metes and bounds description is not required and the way can be identified and located from testimony.20

The identity element was discussed by a South Carolina federal district court. In the case, Time Warner Cable argued it satisfied the element as a matter of law despite certain changes because those changes did not constitute the type that would support a finding of change of identity of the thing enjoyed. The changes were that the use of the claimed prescriptive easement had evolved from delivery of a cable television signal to include both telephone and internet services and the initial lines had been replaced with a different type cable. The court believed South Carolina courts would construe prescriptive easements at least as narrowly as written easements and, therefore, said the question "should not be resolved on anything less than a fully developed record."21

2. Use that Has Been Open, Notorious, Continuous, Uninterrupted, and Contrary to the True Property Owner's Rights for Period of 20 Years

The second element is shown by "adversity." When a claimant establishes that his or her use is open, notorious, continuous, and uninterrupted, it will be presumed to have been adverse, and the owner of the servient estate bears burden of rebutting that presumption.22

The South Carolina Supreme Court has quoted the Restatement (Third) of Property (Servitudes) for the definitions of "open" and "notorious."23 The Restatement says that "'Open' generally means that the use is not made in secret or stealthily. It may also mean that it is visible or apparent. 'Notorious' generally means that the use is actually known to the owner, or is widely known in the neighborhood."24

The frequency of use required for it to be continual is relative.25 It "will be much less if the claimant only used the easement to access his rural, secondary property than it would be if he used the easement to access his primary residence."26 Additionally, once a right of way by prescription has been established by 20 years of continuous use, later diminishment in frequency of that use does not necessarily nullify an established right by prescription.27

Even a brief interruption will negate the first element. The South Carolina Supreme Court has said that: "actions are sufficient to interrupt the prescriptive period when the servient landowner engages in overt acts, such as erecting physical barriers, which cause a discontinuance of the dominant landowner's use of the land, no matter how brief. In addition to physical barriers, verbal threats which convey to the dominant landowner the impression the servient landowner does not acquiesce in the use of the land, are also sufficient to interrupt the prescriptive period."28

A party may "tack" the period of use of prior owners to satisfy the 20-year requirement.29 To tack onto the period of use of another, the claimant has to have some direct relationship with the predecessor in title — known as privity of estate30 — and, therefore, a claimant cannot tack his or her use to that of a stranger.31 A period of prescriptive use may be tacked if there is a transfer between the prescriptive users of the inchoate servitude or the estate benefited by it.32

Permissive use of property will not ripen into an easement by prescription.33 As the South Carolina Supreme Court explained long ago:

While it is true that, when it appears that claimant has enjoyed an easement openly, notoriously, continuously, and uninterruptedly, in derogation of another's rights, for the full period of 20 years, the use will be presumed to have been adverse, so as to cast upon the owner of the servient estate the burden of rebutting the presumption ... that rule does not apply when claimant's own testimony shows that the use was permissive in its inception.34

The Court added that whether...

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